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The Reality and Purpose of Public Financing Triggers, and Government Ethics

Tuesday, June 28th, 2011

Robert Wechsler

Reading the Supreme Court majority and dissent opinions in McComish v.
Bennett (attached, see below; actually Arizona Free Enterprise Club's Freedom Club PAC v.
Bennett at the Supreme Court level) is a very jarring experience that I
highly recommend to anyone interested in government ethics. One
opinion presents the world as we know it. The other opinion exists in a
different world, a world without action and inaction on the part of
legislative officials that can be tied directly to contributions in support of
their campaigns. The other opinion also does not acknowledge the real-world fact that most competitive candidates will not participate in a public campaign financing program that does not have a trigger provision.

[W]hen confronted with a choice between fighting corruption and
equalizing speech, the drafters of the matching funds provision chose
the latter. That significantly undermines any notion that the “Equal
funding of candidates” provision is meant to serve some interest other
than an interest in equalizing funds.

Both opinions recognize that corruption is an issue, but the majority
opinion chooses to prevent states from fighting corruption by employing the concept of "equalizing speech" to make it falsely appear that the trigger was
intended only to deal with free speech and not corruption.

It is impossible to believe that Justice Roberts' imagination is so
limited as to say the following (p. 26) despite all that has been
written and said about the importance of trigger provisions to public financing:

In the face of such ascetic contribution limits, strict disclosure
requirements, and the general availability of public funding, it is
hard to imagine what marginal corruption deterrence could be generated
by the matching funds provision.

Justice Kagan's dissent opinion begins by explaining why the trigger
came to be and why it is necessary (see the 37th page of the file):

Imagine two States, each plagued by a corrupt political system. In both
States, candidates for public office accept large campaign
contributions in exchange for the promise that, after assuming office,
they will rank the donors’ interests ahead of all others. As a result
of these bargains, politicians ignore the public interest, sound public
policy languishes, and the citizens lose confidence in their government.
...

This is the view of the political world that led to the practical
solution of public campaign financing. As Justice Kagan recognizes,
regular campaign finance rules have turned out not to be enough to
prevent corruption, and public financing without a trigger provision did not attract major candidates. That's
why the trigger was created. Not to create a level
playing field, not to burden anyone's free speech rights, but to make
public financing work.

The fact that Justice Roberts was unwilling to even recognize this
essential reality of public financing programs taints every word in the
majority opinion. If he had said, "I recognize that grant-based public financing
will not work without a trigger, and that without public financing
there will arguably be far more corruption, but free speech is more
important than corruption," then the majority opinion would at least
seem honest. But it does not.

It's not just the reality that Justice Roberts ignores, it's also the
purpose behind the constitutional protection. Again, Justice Kagan
focuses on the purpose behind the free speech provision and applies
that purpose to the case (p. 3 of her opinion):

The First Amendment’s core purpose is to foster a healthy, vibrant
political system full of robust discussion and debate. Nothing in
Arizona’s anti-corruption statute ... violates this constitutional
protection.

A similar refusal to look at the purpose behind the constitutional
provision is central to the argument for applying legislative immunity
to government ethics. No court decision has yet to recognize that
legislative immunity and government ethics have the exact same
purpose: to ensure that representatives act on behalf of their
constituents rather than on behalf of themselves. If a court were to
acknowledge this, it would force them into a balancing mode, in which they may very well find that legislative immunity has no role in
government ethics. Instead, they find that legislative immunity is absolute and untouchable.

Dishonesty is not, however, the issue with legislative immunity,
because so little has been written about legislative immunity and
government ethics. I wish my ideas would be taken up and examined at
length by practitioners, academics, and institutes, but it doesn't look
that's going to happen any time soon.

By the way, I wear two hats here, one as administrator of a public campaign financing program in New Haven, CT (which has a hybrid trigger, only one half of which is arguably unconstitutional) and the other as government ethics consultant leading the lack of a campaign against legislative immunity's application to government ethics.